NYCTL Brownfield, LLC v. Scerbo

2021 NY Slip Op 06851, 155 N.Y.S.3d 118, 200 A.D.3d 784

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2021
• Docket: Index No. 150482/16
• Status: Published

Opinion

NYCTL Brownfield, LLC v Scerbo (2021 NY Slip Op 06851)

NYCTL Brownfield, LLC v Scerbo

2021 NY Slip Op 06851

Decided on December 8, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
LINDA CHRISTOPHER
PAUL WOOTEN
JOSEPH A. ZAYAS, JJ.

2017-12204
(Index No. 150482/16)

[*1]NYCTL Brownfield, LLC, et al., respondents,

v

Michael Scerbo, appellant, et al., defendants.

Phillips Lytle LLP, Rochester, NY (Anthony J. Iacchetta of counsel), for respondents.

Michael Scerbo, Staten Island, NY, appellant pro se.

DECISION & ORDER

In an action to foreclose tax liens, the defendant Michael Scerbo appeals from an order of the Supreme Court, Richmond County (Orlando Marrazzo, Jr., J.), dated September 26, 2017. The order, insofar as appealed from, granted those branches of the plaintiffs' motion which were for summary judgment on the complaint insofar as asserted against the defendant Michael Scerbo, to strike that defendant's answer, and for an order of reference, and appointed a referee to compute the amount due to the plaintiffs.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In this action to foreclose tax liens on property owned by the defendant Michael Scerbo, the plaintiffs moved, inter alia, for summary judgment on the complaint insofar as asserted against Scerbo, to strike his answer, and for an order of reference. The Supreme Court, among other things, granted those branches of the plaintiffs' motion. Scerbo appeals.

The plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law by submitting the subject tax lien certificates along with proof that no payments had been made on the tax liens (see NYCTL 2008-A Trust v Trinco, Inc., 148 AD3d 1035, 1035-1036; NYCTL 2008-A Trust v Lee Zhen Xiang, 121 AD3d 1062, 1063). In opposition, even considering the unpleaded defense advanced by Scerbo in opposition to the plaintiffs' motion, Scerbo failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320; NYCTL 2008-A Trust v Lee Zhen Xiang, 121 AD3d at 1063).

Scerbo's remaining contention is improperly raised for the first time on appeal.

DILLON, J.P., CHRISTOPHER, WOOTEN and ZAYAS, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court